Hovey v. Ayers
| Citation | 458 F.3d 892 |
| Decision Date | 11 August 2006 |
| Docket Number | No. 03-99001.,03-99001. |
| Parties | Richard Adams HOVEY, Petitioner-Appellant, v. Robert L. AYERS, Jr.,<SMALL><SUP>*</SUP></SMALL> Acting Warden, California State Prison at San Quentin, Respondent-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
William Bennett Turner, Rogers Joseph O'Donnell & Phillips, San Francisco, CA, for the petitioner-appellant.
Seth K. Schalit, Supervising Deputy Attorney General, San Francisco, CA, for the respondent-appellee.
Appeal from the United States District Court for the Northern District of California; Marilyn H. Patel, District Judge, Presiding. D.C. No. CV-89-01430-MHP.
Before KIM McLANE WARDLAW, RICHARD A. PAEZ, and MARSHA S. BERZON, Circuit Judges.
Richard Hovey appeals the district court's denial of his petition for a writ of habeas corpus. He seeks relief from his 1982 conviction and sentence of death for first degree murder during the course of a kidnapping. He asserts that more than a dozen errors infected his trial, principally: denial of the due process right to be present at a mid-trial hearing on his attorney's competence; ineffective assistance of counsel at the guilt and penalty phases; Griffin error, see Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Brady error, see Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and exclusion of forward-looking evidence to support a proper penalty-phase jury instruction. Because Hovey admitted that he had taken the young victim against her will and committed the acts that resulted in her death, Hovey cannot demonstrate the requisite prejudice to succeed on his claims of error in the guilt phase. The district court, therefore, correctly rejected all of Hovey's guilt-phase claims, finding a number of errors but determining that none is alone or cumulatively sufficient to merit reversal of Hovey's conviction. We hold, however, that the district court erred in concluding that the deficient performance of counsel in the penalty phase did not prejudice Hovey. Counsel's failure to investigate Hovey's mental condition at the time of the murder and to adequately prepare Hovey's penalty-phase expert witness sufficiently undermines our confidence in the verdict of death as to require us to reverse the denial of his petition as to the penalty phase. Therefore, we affirm in part and reverse in part the district court's judgment denying Hovey's habeas corpus petition.
On March 10, 1978, eight-year-old Tina Salazar was abducted while she was walking home from school in Hayward, California. Later that afternoon she was found by the side of a road, bound at the wrists and thighs. Doctors concluded that she had six depressed skull fractures and fourteen laceration wounds. Eight days later, Salazar died.
Three months later, in June 1978, Hovey was arrested in connection with the kidnapping of another young girl, Amy Guard, in Albany, California. In December of that year, while in custody for the Guard kidnapping, Hovey was arrested for the Salazar kidnapping and murder. Hovey was charged with kidnapping and with first degree murder with two "special circumstances": murder during a lewd and lascivious act on a child, which was dismissed during trial, and murder during the course of a kidnapping.
Under California law applicable at the time of Hovey's trial, kidnapping was not a felony that could give rise to a first degree felony murder conviction; it could only support a finding of second degree murder. See Cal.Penal Code § 189 (1988); People v. Ford, 65 Cal.2d 41, 57, 52 Cal. Rptr. 228, 416 P.2d 132 (1966), overruled on other grounds by People v. Satchell 6 Cal.3d 28, 98 Cal.Rptr. 33, 489 P.2d 1361 (1971); see also 1 B.E. Witkin & Norman L. Epstein, California Criminal Law § 470, at 220-21 (2d ed. Supp.1999) (). Furthermore, under the provisions of California law applicable to Hovey's case, the first degree murder in the course of a kidnapping special circumstance with which Hovey was charged required the jury to find a willful, deliberate, and premeditated murder. See Cal.Penal Code § 190.2(c)(3) (1977). Thus a finding of premeditation was critical to Hovey's eligibility for the death penalty.
After his arrest, but before trial on the Salazar kidnapping and murder, Hovey was convicted of the Guard kidnapping. In return for the exclusion of the Guard conviction from the Salazar murder trial, Hovey stipulated that he had taken Salazar against her will and had committed the acts that caused her death. The stipulation thus conclusively established Hovey's identity as Salazar's killer. As a result, the central issue at the guilt-phase trial became whether the killing was sufficiently deliberate and premeditated to support a death-eligible first-degree murder conviction.
Two attorneys from the Alameda County Public Defender's Office were appointed to represent Hovey. Early in the trial, the trial judge sua sponte convened an evidentiary hearing to address the judge's concerns regarding the competency of Hovey's primary attorney. Hovey was neither informed about the two-day hearing nor invited to participate. At the conclusion of the hearing, the court found counsel competent to represent Hovey.
During the guilt phase, eyewitnesses testified that on the day of the kidnapping they saw a man struggling with and beating a young child with an object in a light blue car near the place where Salazar was found. Two city employees testified that on the day of the kidnapping, while they were driving a City of Hayward marked car, they saw a light blue car that had been parked by the side of a road suddenly speed away. When they approached the place where the car had been parked, they discovered a grievously injured child lying on the ground.
The prosecution argued that Hovey had a knife in his car when he kidnapped Salazar and used the knife to kill her. No knife was ever found. Two prosecution medical experts, Drs. Chow and Loquvam, testified that Salazar's wounds could have been caused by a knife. In addition, two jailhouse informants, Thomas Hughes and Donald Lee, each recounted that while sharing a cell with Hovey, Hovey had said that he brought a knife with him when he kidnapped Salazar and killed her with a knife. Hughes testified at trial, but Lee did not; instead, his testimony from Hovey's pretrial hearing was read to the jury.
The prosecution's theory of motive was that Hovey had abducted Salazar to sexually molest her and killed her to prevent her from identifying him as her assailant. Hughes and Lee each testified that Hovey told him that he had killed Salazar because he was afraid she would identify him after she kept trying to remove the blindfold, according to Lee, or the hood-bag, according to Hughes, that Hovey had placed over Salazar's head to keep her from seeing him. No blindfold or hood-bag was reported by the individuals who found Salazar.
The defense theory was that Hovey did not intend to kill Salazar but had struck her in a panic. Hovey did not testify. The defense attempted to discredit the knife testimony by portraying Hughes and Lee as sophisticated individuals who had fabricated their testimony to secure protection in jail and lenient treatment for the charges pending against them. The defense argued that Hovey had not brought a weapon with him when he kidnapped Salazar, but instead panicked and used a blunt instrument that he found in the car, possibly a shock absorber. A defense medical expert testified that Salazar's wounds were caused not by a knife, but rather by a blunt instrument. To support lack of premeditation, the defense argued that Hovey had pushed Salazar out of the car directly in front of the two City of Hayward employees to attract their attention so that she could get medical help thus showing that he had not intended to kill her.
The jury found Hovey guilty of first degree murder with the special circumstance of murder during a kidnapping, and guilty of kidnapping with infliction of great bodily injury. The jury also found that he had used a deadly weapon, a stabbing instrument, during the commission of the crime.
In the penalty phase, Hovey's key witness was Dr. Satten, a psychiatrist who testified that Hovey suffered from schizophrenia, and that this mental illness caused Hovey to lose control and kill Salazar. The jury found that the aggravating circumstances of the crime outweighed the mitigating circumstances and returned a death verdict. Hovey's conviction and sentence of death were affirmed on direct appeal. People v. Hovey, 44 Cal.3d 543, 244 Cal.Rptr. 121, 749 P.2d 776 (1988). After the state courts rejected Hovey's petitions for habeas relief, Hovey filed a federal habeas petition in 1991. In seven orders issued between 1996 and 2002, the district court rejected all of Hovey's claims and ultimately denied his habeas petition. This appeal timely followed.
The district court had jurisdiction over this petition for habeas corpus pursuant to 28 U.S.C. § 2254. We have jurisdiction over final judgments of the district court pursuant to 28 U.S.C. § 2253(a).
This is a pre-AEDPA case. See Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214. Therefore, we review the district court's decision to grant or deny a 28 U.S.C. § 2254 habeas petition de novo. See Alcala v. Woodford, 334 F.3d 862, 868 (9th Cir.2003). Legal questions and mixed questions of law and fact are reviewed de novo. See Swan v. Peterson, 6 F.3d 1373, 1379 (9th Cir.1993). Factual findings made by the district court are reviewed under the "significantly deferential" clearly erroneous standard, in which we accept the district court's findings of fact...
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